I am happy that the W3C has agreed to extend the review
period for the Patent Policy Draft in response to the many
comments (including mine) that they received. I have tried to
follow the W3C recommendations for comments as outlined in
the “Response to Public Comments on the W3C Patent Policy
Framework Working Draft”
(http://www.w3.org/2001/10/patent-response).
In response to the W3C’s questions regarding the elements of
the proposal that I object to:
1) I have no objections to a requirement for disclosure
provisions, although I believe that the disclosure requirements
need to be expanded and strengthened (as outlined in detail
below).
2) I have no objections to a procedure for launching new
standards development activities as Royalty-Free Licensing
Mode activities.
3) I have strong objections to the outlined procedure for
launching new standards development activities as Reasonable
and Non-Discriminatory (RAND) Licensing Mode activities.
In the interest of brevity and readability, I will refer Working
Groups with charters that specify that they will operate in a
RAND licensing mode as “RAND Working Groups” and those
whose charters specify they will operate in a Royalty-Free (RF)
licensing mode as “RF Working Groups.”
In general, my objection to the proposed Patent Policy is that,
despite a few comments on past importance of open technical
standards to the Web’s development in the informative
Overview and Background, the Policy takes no position on the
relative merits of creating a new Working Group as a RAND
Working Group or as a RF Working Group and treats these
two alternatives on an equal procedural footing.
My initial comments, and those submitted by many others, have
enumerated, in detail, the reasons that standards with RF
licensing are to be very strongly preferred to standards with
RAND licensing. A summary of these reasons would include:
1) Open source implementations of standards that require
payment of a licensing fee will be impossible since there is no
revenue stream to pay the licensing fee from. This will greatly
slow the development of software implementing standards and
will also greatly decrease the chance that standards will be
implemented in innovative software or systems.
2) Adoption of standards that require payment of a licensing fee
will create very strong pressure for the development of a rival
RF standard outside the W3C, which because of the presence
of the large open-source developer community, will likely have
substantial developer support. The resulting rival “standards” will
result in slower adoption of new technologies (at best) or a
permanent split between incompatible standards. Over the long
run, existence of competing standards will undermine the role
and relevance of the W3C as the organization that sets web
standards.
3) There will be a conflict of interest for any W3C member who
has a patent on a technology that is to be included in a RAND
licensed standard, since that member has an obvious financial
incentive to push their technology (in order to reap the license
fees) rather than the best technology.
4) If a company controls the patents for technology included in a
RAND licensed standard, they will have undue leverage over the
evolution of the standard (since they can always threaten to alter
the licensing scheme), and may be able to eventually dictate the
evolution of the standard regardless of what the rest of the W3C
members think is best.
5) The requirement to place license fees to use standards places
an undue burden on people or countries with limited economic
resources, violating the W3C commitment to the widest
possible access to the web.
I would prefer that the W3C Patent Policy Framework simply
state that all Working Groups must be operate in RF licensing
mode. If the W3C feels strongly that there must be some
mechanism for creating Working Groups that operate in RAND
licensing mode, I have outlined below what I would consider the
minimum acceptable safeguards for permitting this dangerous
possiblity.
The W3C Patent Policy Framework must include statements
that the creation of RF Working Groups is strongly preferred
and that RF should be considered the standard, or default,
licensing mode.
I find it extremely unlikely that a patent situation would exist that
would preclude the development of a standard under an RF
licensing mode. If those proposing a new Working Group for
some reason feel that development of standard under an RF
licensing mode is not possible, I suggest the following additional
procedural steps before allowing the group to be created as a
RAND Working Group:
1) The W3C should approach all companies with Essential
Claims and ask them in a public and formal manner to agree to
license those claims on an RF basis when they are used for the
purposes of implementing the standard, and to make this license
permanent and not subject to future revocation or additional
conditions.
2) If one or more companies refuse, the W3C should investigate
the legal basis for the claim that elements of the proposed
standard would infringe on the Essential Claims in the patents,
and whether the underlying patent is valid. If it was clear that
there was no infringement or that the patent was not likely to be
deemed valid, the W3C should bring the appropriate legal action
to overturn the patent or obtain a ruling as to its scope.
3) Should this fail or not be possible, the W3C should diligently
investigate alternative ways of formulating the standard so that
no patents are involved. Give the nearly infinite flexibility of
digital information representation, it is very hard for me to see
how this step could ever fail. As part of this step, the W3C
should publicly post a description of the problem, including the
details of how the patents prevent development of the proposed
standard under an RF licensing mode, the relevant text of the
patents, and the proposed activity of the Working Group.
TheW3C should invite public comment over a period of at least
30 days in order to allow people to propose alternative ways of
approaching the standard that would not involve RAND
licensing.
4) Only if at the end of this process there was no suitable
alternative way of formulating the standard that would allow RF
licensing, would the W3C allow the creation of a Working
Group under a RAND licensing mode. As I have said before, it
seems extremely unlikely that this will ever be necessary, but the
proposed framework would provide a way that it could be done.
In summary, I hope that the W3C either confirms that all
standards be developed in a RF licensing mode, or, if it feels it is
absolutely necessary to have a procedure in place to allow for
the creation of RAND licening mode Working Groups, it adopts
the strong procedural safeguards that I have described above.
Sincerely,
Evelio Perez-Albuerne
evelio@ultradrive.comhttp://www.ultradrive.com